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The Stability of the Federal Constitution. 



An Address delivered by William L-f Putnam, 
at Portland, July 4, 1889, ^' 

BY BEQUEST OF THE MAYOB AND CITY COUNCIL. 


Mr. Mayor and Fellow-Citizens: 

On reading not long since a paper written by the 
eminent jurist, Judge Cooley, concerning the com par- 
ative merits of written and prescriptive Constitutions, 
and noticing his remark that, since the formation of 
our republic, the framework of nearly all the govern¬ 
ments of Europe had been substantially changed, it 
occurred to me to run back with a view of ascertain¬ 
ing how far, during the progress of the last century, 
we have gone in this direction w.ith other peoples. 

The question is not merely whether the ship of state 
has gathered barnacles to be washed off whenever she 
comes into clear w^aters, but whether she has broken 
the lines which her builders gave her. It is not 
whether in the course of events there have been oscil¬ 
lations, but whether those oscillations have taken us 




9 



from the paths in which our fathers set us. It is not 
whether, by grouping together a certain class of facts 
and dwelling upon those alone, we can make it appear 
that there have been great changes in our Constitu¬ 
tional organization, but whether, looking at the ques¬ 
tion at large, we have departed from the truths which 
our fathers taught us. Nor is it a matter of counting 
the stars in their courses, but of measuring human 
events by human events. Upon this I have no theory 
except what comes from contemplation of the wisdom 
and virtue of our fathers, and from an ever-increasing 
gratitude for.the blessings which their work has show¬ 
ered upon us. 

The distinguished writer, Mr. Bryce, has taken some 
positions which, I think, ought to be met. He says : 


“The solemn determination of a people enacting a funda¬ 
mental law by which they and their descendants shall be gov¬ 
erned cannot prevent that law, however great the reverence 
they continue to profess for it, from being worn away in one 
part, enlarged in another, modified in a third, by the ceaseless 
action of influences playing upon the individuals who compose 
the people.” 


With that I agree, but again he says: 


“ Since modifications or developments are often needed, and 
since they can rarely be made by amendment, some other way 
of making them now referring to the Constitution of the 
United States—“some other way must be found. The ingenuity 

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of lawyers has discovered one method in interpretation, while 
the dexterity of politicians has invented a variety of devices 
whereby legislation may extend, or usage may modify, the ex¬ 
press provisions of the apparently immovable and inflexible 
instrument.” 

That I deny. Again he says : 

“To expect any form of words, however weightily conceived, 
with whatever sanctions enacted, permanently to restrain the 
passions and interests of men, is to expect the impossible. 
Beyond a certain point, you cannot protect the people against 
themselves any more than you can, to use a familiar American 
expresssion, lift yourself from the ground by your boot-straps. 
Laws sanctioned by the overwhelming physical power of a 
despot, laws sanctioned by supernatural terrors whose reality no 
one doubted, have failed to restrain those passions in ages of 
slavery and superstition.” 

I deny the applicability of this illustration to a Con¬ 
stitution based as ours was, not upon the caprices of 
tyrants, but upon the solid foundation of truth. 

Judge Cooley, in the article to which I have referred, 
speaking judicially as he always speaks, said: 

“ The establishment of the Federal Constitution, whether we 
regard it in the light of its undoubted benefits to the people im¬ 
mediately concerned, or consider its more remote influence upon 
the institutions of other countries, was an act of organization 
and of government with which, for value and importance, no 
other in the history of mankind is comparable.” 

Now, fellow-citizens, when we regard the fact that 
it was put into the preamble of the Constitution, that 


4 


one purpose was to secure the blessings of liberty, not 
only to its founders, but also to their posterity, when 
we remember that the fathers intended that our institu¬ 
tions should be permanent so far as humanity could 
see into the future, to admit the assertion made by 
Prof. Bryce would be to admit that a crumbling stone 
is fit to go into the corner foundations of the loftiest 
structure, and to deny alike Judge Cooley and many 
others who have written and spoken to the same effect 
as he. 

It is said the Constitution has been changed in its 
essential features by amendments. An amendment 
is a constitutional change; and therefore I might 
set up a technical answer to this. But I put it on a 
broader ground. I admit that an amendment to the 
Constitution in violation of its fundamental principles 
would be in every just sense a change; but I deny 
that any of that nature has been made. 

The earlier amendments were in truth a part of the 
original Constitution. Then came two relating merely 
to matters of detail. Afterwards came those which 
are said to have grown, and which indeed grew, out 
of the late civil war, but which were the natural de¬ 
velopments of the great principles of the Constitution. 
Take the amendment abolishing slavery, which did 
little more than recognize an existing condition of 





5 


things. I think a fair reading of the history of the 
times of our fathers will satisfy, or ought to satisfy, 
that, between the slavery trade upon the ocean at the 
east being openly threatened in the Constitution and 
the ordinances of 1787 on the west, the fathers con¬ 
sidered that they so shut in on the front and rear the 
system of slavery, that in time it would die for want 
of food, as a taper at last expires in an air-tight 
chamber. 

The expansion of the system of slavery which re¬ 
sulted in the war, and in the amendments to which I 
have called attention, was not in the contemplation 
of the fathers. It was an oscillation ; and when, as a 
result thereof, slavery was abolished, the country did 
not depart from the Constitution, but returned to it. 

So also those amendments which went hand in 
hand with the amendment to which I have referred, 
prohibiting states from interfering with the life and 
liberty, of our citizens. These were simply the appli¬ 
cation to the states of the restrictions which the Con¬ 
stitution originally put upon the national government. 

Let us look at the great sanctions in behalf of 
liberty which we find in the Constitution; the division 
into three great departments, the executive, the legis¬ 
lative and the judicial; the judicial power made in¬ 
dependent and placed beyond the control of faction ; 


6 


the veto power; the habeas corpus ; the prohibition 
against ex post facto laws, and against all laws for the 
deprivation of life, liberty or property without due 
process; all the provisions against discriminations in 
favor of states or sections; all the protection thrown 
about criminals; the security of trial by jury, both in 
criminal and civil proceedings; the guaranty of the 
enjoyment everywhere of the privileges and immuni¬ 
ties of the citizens of the several states; these were 
the great guaranties of the Constitution ! I ask you, 
after the lapse of a century, which of these have been 
dimmed, and whether they do not all shine to-day 
like the constellations ? 

Those portions of the Constitution which concern 
the relations of the states to the nation have been 
most subject to discussion with reference to this par¬ 
ticular to which I call your attention. 

Upon all these other matters the fathers had expe¬ 
rience ; almost every state, at the time the Federal 
constitutional convention met, had a written Constitu¬ 
tion, and those written Constitutions contained the 
great guaranties of which I have spoken. But in this 
matter of the relation of the states to the general 
government, so far as details were concerned, the 
fathers were without experience. On the one hand 
they came together for the purpose of making a more 


7 


perfect union; on the other hand they did not forget 
that the towns and other local organizations had 
enabled them to meet, first the tyranny of Great 
Britain exercised through civil authorities, and after¬ 
wards her attempts at tyranny through her armed 
forces. These two were to be reconciled. The ar¬ 
rangements for this were necessarily experimental. 
They have given opportunity for differences from time 
to time. But when we take the great landmarks in 
the decisions of the Supreme Court of the United 
States, which finally control, not only directly, but also 
I believe by appealing to the hearts and good sense of 
the people, the matter stands as it always stood. 

I will read what was said by Chief Justice Waite 
in 1876 : 

“The government thus established and defined is to some ex¬ 
tent a government of the states in their political capacity. It 
is also, for certain purposes, a government of the people. Its 
powers are limited in number, but not in degree. Within the 
scope of its powers, as enumerated and defined, it is supreme 
and above the states: but beyond, it has no existence. It was 
erected for special purposes, and endowed with all the powers 
necessary for its own preservation and the accomplishment of 
the ends of its people had in view. It can neither grant nor 
secure to its citizens any right or privilege not expressly or by 
implication placed under its jurisdiction. 

“The people of the United States resident within any state 
are subject to two governments: one state, and the other 
national; but there need be no conflict between the two. The 
powers which one possesses, the other does not. They are es- 


8 


tablished for different purposes, and have separate jurisdictions. 
Together they make one whole, and furnish the people of the 
United States with a complete government, ample for the pro¬ 
tection of all their rights at home and abroad.” 

All this might have been said by Marshall. 

I will also read, as an authoritative expression, what 
was said by Justice Miller in his address at the semi¬ 
centennial of the University of Michigan in 1887. In 
closing his comparison of the decisions of the Supreme 
Court since the war of the rebellion with those before, 
he said : 

“The necessity of the great powers, conceded by the Constitu¬ 
tion originally to the Federal Government, and the equal neces 
sity of the autonomy of the states and their power to regulate 
their domestic affairs, remain as the great features of our com¬ 
plex form of government.” 

Personal theories as to this have nothing to do with 
the historical question which I am discussing. It is 
my own belief that, while in view of the great and 
rapid growth of our affairs we have been impatient at 
the lack of the restraints of law, and have therefore 
appealed to the stronger power to aid us, yet, as the 
country goes on, as our interests become settled, as the 
large forces of the general government, as well as of 
the states, are thoroughly understood, the people will 
adhere closely to the doctrines of the fathers and re¬ 
tain local government with a firm hand. But so far 




9 


as the doctrine of the Constitution is concerned I am 
unable to perceive that there has been any essential 
change in the views expressed by the only tribunal 
authorized to speak finally in reference to it. 

It is said that certain usages have intervened, that 
certain practices have grown up which are additional 
to the Constitution, and which, in some instances, have 
avoided its purposes. I cannot pursue all this through 
to-day. You recall the question of the purchase of 
Louisiana. Whatever has been said concerning that, 
one thing is certain : no fundamental right guaranteed 
' to the people by the Constitution has been diminished 
thereby. On the other hand, the borders have been 
extended within which its principles have effect. 

Some think the existence of parties is not in har¬ 
mony with the principles of the Constitution as in¬ 
tended by the fathers; but this element they thor¬ 
oughly understood. It was a radical change of party 
in England which gave us the treaty of 1783. I have 
not time to trace through the history of the English 
cabinet, and show you how parties grew up there; 
but at the time of the revolution they were in full 
blossom, and have since become important elements 
with all the nations of Europe, excepting Russia and 
Turkey. 

Washington, in his Farewell Address, recognized the 


2 


10 


necessity at times of parties, although he warned 
against excessive party spirit. With the improve¬ 
ment of manners, and with the necessities arising from 
enlarged intercourse as the population increases, there 
has been undoubtedly an amelioration since the day of 
Washington, although not to the extent which good 
citizens might well desire. We have not all reached 
the point where we remember that, while each of us 
has a right to adhere firmly to his convictions on po¬ 
litical questions, each of our neighbors is, by the prin¬ 
ciples of our government, entitled to the same inalien¬ 
able privilege. 

In some particulars, especially, as suggested by 
Judge Miller in the address to which I have referred, 
in the matter of “spoils,” party has cast temporarily 
a clcud upon the proper division between the legisla¬ 
tive and executive powers. I will not, however, take 
time to develop this. I merely affirm that this matter 
of party government was known and understood by 
our fathers, expected and anticipated by them, and 
under reasonable restraint is in no sense necessarily 
in conflict with the principles of our Constitution. 

There have been suggestions on this question with 
reference to our foreign policy. Washington, as you 
recollect, in his Farewell Address, deprecated a “ foreign 
policy” for the United States, as those words are 


11 


commonly understood. Nothing in the Constitution, 
either in the preamble or the text, indicates more than 
a desire to secure internal happiness and prosperity, 
or any purpose of aggrandizement, or of impressing 
ourselves on other nations by force or diplomacy. 

Therefore Washington laid down the cardinal princi¬ 
ples to govern us in our relations to others, as follows : 

“Observe good faith and justice towards all nations; culti¬ 
vate peace and harmony with all. Religion and morality enjoin 
this conduct, and can it be that good policy does not equally 
enjoin it ? ’’ 

He had especially in mind our relations with the 
nations across the Atlantic. Probably no part of that 
remarkable paper, which has impressed itself upon our 
people more than any other since the Constitution, 
sank deeper into the hearts of his fellow citizens than 
this caution against involving ourselves in the political 
entanglements of Europe. 

In 1823, George Canning, jealous of the Holy Alli¬ 
ance,” desired to secure the co-operation of the United 
States with England to prevent the possibility of its 
aggrandizement by seizing portions of America. In a 
conversation with our minister at London he made 
suggestions which brought out, in the message of the 
President of 1823, those declarations forming the basis 


12 


I 


of what is known as the ‘‘Monroe Doctrine.” From 
this I read : 


‘^The occasion has been judged proper for asserting, as a prin¬ 
ciple in which the rights and interests of the United States are 
involved, that the American continents, by the free and inde¬ 
pendent condition which they have assumed and maintained, are 
henceforth not to be considered as subjects for future coloniza¬ 
tion by any European powers.” 

******* 

“ In the wars of European powers to matters relating to them¬ 
selves, we have never taken any part, nor does it comport with 
our policy to do so. It is only when our rights are invaded or 
seriously menaced that we resent injuries or make preparation 
for our defence. With the movements in this hemisphere we 
are of necessity^ more immediately connected, and by causes 
which must be obvious to all enlightened and impartial ob¬ 
servers. 

We owe it, therefore, to candor and to the amicable relations 
existing between the United States and those powers, to declare 
that we should consider any attempt on their part to extend 
their systems to any portion of this hemisphere as dangerous to 
our peace and safety. With the existing colonies or dependencies 
of any European power we have not interfered, and should not 
interfere.” 

The Monroe doctrine is, in a certain sense, the sup¬ 
plement of the cautions of Washington. “We will 
not interfere in the affairs of Europe, and Europe is 
not to interfere in ours.” 

There was in this a sort of fairness: “ You let us 
alone, and we will let you alone,” which appealed at 
once to the American heart; and if there is anything 


^■v 

■) 



13 


which can be said to have been added to the Constitu¬ 
tion without going through the forms of an amend¬ 
ment, it is this. 

But, fellow citizens, there is nothing in this which 
controverts the principles of the Constitution. There 
is nothing in it which changed the fundamental rules 
governing this nation. 

In 1878 the Navigator Islands, now known as the 
Samoan Islands, applied to the United States to ex¬ 
tend a protectorate in their behalf. Yielding un¬ 
doubtedly to the sentiment which had become so firmly 
established in the minds of our people, the United 
States declined to accept the protectorate; and we 
thought that we had relieved ourselves of that matter. 
We had completed our policy as between ourselves 
and Europe across the Atlantic, and we saw no occa¬ 
sion for extending a different policy across the Pacific; 
but in 1884 Germany and England divided up the 
island of New Guinea. In 1886 they parcelled out 
the Southern Pacific Ocean, covering an extent of 
nearly forty-five degrees of latitude and nearly as 
many of longitude; and we suddenly found Europe, 
not beyond the Atlantic, but in the Pacific, where the 
day of the Western Hemisphere meets the day of the 
Eastern. 

Mr. Sherman, declared concerning the difficulties at 


14 


Samoa: To me it seems the smallest controversy 

in which the United States could be or has ever been 
engaged.” But, fellow-citizens, whether the question 
concerns only the Navigator Islands, with a population 
about equal to that of Portland and a territory about 
equal to that of York county, or whether it concerns 
any of the great nations bordering upon the Atlantic 
ocean, if it touches this doctrine to which I have called 
attention, it deserves our careful and thoughtful con¬ 
sideration. 

The question may arise to be reconsidered, whether 
or not we shall adhere to the proposition that noli 
me tang ere covers tlie four quarters of our relations 
with foreigners, whether we shall always ask: ‘^Are 
we our brother’s keeper ?,” and whether we shall still 
claim that humanity will be better served by a 
maintenance of our traditional policy. When that 
comes I have no doubt the country will meet it prop¬ 
erly ; but for the present all we can say,—and so far 
I must admit that we have apparently grafted upon 
our (Constitution an unwritten law,—that the Monroe 
doctrine ” has so fitted itself into the hearts of our 
people that, upon any gross and clear infraction of its 
underlying principles, the President would be sustained 
in using at once the whole moral power, and perhaps 
the physical forces, of the nation. 


15 


■ 


Now, fellow-citizens, I have given you, briefly, a 
sketch of the historical progress of our constitutional 
experience. I have said enough to you to illustrate 
the various propositions made by those who claim that 
we have drifted away from the principles of our fathers. 
I have given you the salient points. And I submit to 
you whether the lesson of the century does not show 
that the fathers availed themselves of their hard expe¬ 
rience, gathered during the long war of the revolution, 
as well as before and after it, of their great wisdom, of 
the traditions which came to them as descendants of 
the freedom-loving race of history, the Anglo-Saxon, 
whether they did not avail themselves of all these to 
plant deeply the tree of liberty, so that it stands firm 
and unshaken by the force of time ? And I unite here 
in the prayer of the revered Bancroft: Never may 
its trunk be riven by the lightning, nor its branches 
crash each other in the maddening storm, nor its 
beauty wither, nor its root decay ! ” 











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